Mr. John Patzke, Attorney, Brigden & Petajan, appearing on
behalf of the Company.

ARBITRATION AWARD

The above-captioned parties, hereinafter referred to as the Union and the Company,
respectively, were parties to a collective bargaining agreement which provided for final and
binding
arbitration of grievances. Pursuant to the parties' request, the Wisconsin Employment
Relations
Commission appointed the undersigned to decide a grievance. A hearing was held in
Appleton,
Wisconsin on April 25 and May 30, 2002. A transcript was made of the hearing. The
parties filed
briefs on July 12, 2002, whereupon the record closed. Based on the entire record, the
undersigned
issues the following Award.

ISSUE(S)

The parties were unable to stipulate to the issue(s) to be decided in this case. The
Union
frames the issues as follows:

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1. Can the Company require or allow overtime hours
for employees in a department when the
department had positions eliminated within the last year and employees have recall rights
based on realignment pursuant to Section 26(b) of the Agreement?

2. Is the Company required to
provide employees in a different position based on a realignment
as defined in Section 26(b) of the Agreement an opportunity to work overtime when offered
in the employee's former position?

3. If the Company eliminates
two weaving positions pursuant to Section 26(b) of the
Agreement, can the Company have employees in a different position perform the job duties
and job responsibilities of the two weaving positions that were eliminated?

The Company frames the issue as follows:

Did Voith Fabrics violate the collective bargaining agreement on
or about October 8, 2001 by
assigning weaving duties to weave department utility operators while two weavers were on
layoff
pursuant to a realignment, and if so, what is the appropriate remedy?

Having reviewed the record and arguments in this case, the undersigned finds that the
Company's
wording of the issue is appropriate for purposes of deciding this grievance. Accordingly, the
undersigned hereby adopts the Company's wording of the issue. The rationale for this
decision is
addressed in the Discussion section.

Section 3. The management of the plant and the direction of the
working force and of the affairs
of the Company shall be vested exclusively in the Company as functions of management.
Such
functions of management include among others the following:

(a) The rights to hire, transfer from one job to another,
promote, and demote.

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(b) The rights to suspend, discharge and lay off employees
for legitimate reasons.

(c) The right to supervise the work of
each employee, including the right to determine
production schedules, and to assign individual jobs in each department.

(d) The right to establish reasonable
rules and conditions for operating the plant and
covering the conduct of employees in the plant, and to determine the times when shifts shall
begin and end.

(e) The right to determine the product
to be manufactured, the materials to be used, and
the methods, processes, and equipment to be employed.

(f) The right to train Voith Group employees who are
employed by a Voith Group
company outside the United States, whose training may include actual operations within any
department, provided that such employees do not displace employees of the Company.

(g) The right to select Company
employees, at is sole discretion, for training, teaching,
or other work-related activities, at other factories, schools or training centers, provided
participation in such activities shall be voluntary for any employees selected.

The performance of such functions shall be subject to the terms
and conditions of this contract.

. . .

ARTICLE VI ­ WAGES AND HOURS

. . .

Section 11(d) Overtime Distribution. It will be the policy of the
Company to record, post, and
equitably distribute overtime opportunities within each job classification in each department,
during
a calendar year, to trained employees, as determined by the Company, regardless of
seniority, except
as provided in the following paragraph.

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Work on Sundays for departments normally
scheduled to work eight (8) hour shifts will be on
a voluntary basis, except for maintenance employees. For such employees Sunday voluntary
overtime
opportunities will be equitably distributed by job classification within each shift. For work to
be
performed on Sunday by maintenance department employees normally scheduled to work
eight (8)
hour shifts, the Company, when it deems it feasible, within its discretion, shall seek
volunteers for
such work before scheduling such employees for such work. Scheduling or allocation of
work on
Sunday for maintenance department employees shall not be subject to the grievance
procedure.

. . .

ARTICLE XI ­ SENIORITY

Section 26. As to layoff or recall, seniority shall prevail.
Seniority is defined as a person's length
of service during any period of continuous employment with the Company. In the event that
there
is a reduction in the workforce or rehiring in any department and the Company lays off or
fills a job
based on other than seniority, the Union may, if it believes such determination to be
erroneous, file
a grievance thereon in accordance with the grievance procedure established under this
contract. In
the event that two people have an identical amount of seniority, a representative of the
Company shall
flip a coin in the presence of an officer of the Union to determine seniority as between the
two people.

(a) Layoff ­ In the event of a
reduction in the
workforce, the person or persons with the
least seniority in the bargaining unit will be placed on layoff. The person or persons, whose
positions were eliminated by the reduction, will choose, by seniority, from the available
positions vacated by the people laid off. A person, who has been forced into a position
because of a layoff, shall be restored to his pervious position if open within one (1) year.
After one (1) year, his new position shall be permanent.

Employees who are on layoff shall be called back, by
seniority,
before new employees,
including summer help, are hire for such work.

Under no circumstances will people from
outside the Maintenance Department be permitted
to bump into Maintenance positions of grade "C" or above.

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(b) Realignment ­ In the event
positions are eliminated
while the workforce remains the
same, open positions will be posted and eliminated positions notified. Unfilled postings will
be filled by seniority by those employees affected by the realignment.

A person, who has been forced into a position by a
realignment,
shall be restored to his
previous position if open within one (1) year. After one (1) year, his new position shall be
considered permanent.

(c) Re-organization - In the event shift assignments within a
job classification are
adjusted without any change in the total number of positions within that job classification, all
positions in that job classification are to be considered vacant and such positions will be
offered by seniority to those within that job classification until reorganization is complete.

. . .

ARTICLE XII ­ JOB POSTING

Section 33. Whenever a vacancy occurs or is about to occur in
any job, the Company will post
a notice of the vacancy on the main bulletin board from noon Monday until 4:30 p.m. on the
following Friday. Any employee desiring to have the vacant job shall personally or through
a union
representative make a written application, in a form acceptable to the Company, to a
supervisor or
to the Human Resources Department prior to the expiration of the posting.

. . .

BACKGROUND

A. Introduction

The Company manufactures press felts for the paper industry. The Union is the
exclusive
collective bargaining representative for the Company's production and maintenance
employees at the
Appleton plant. The employees involved here, LuAnn DeGroot and Rosemary LaCroix, are
members
of that bargaining unit.

B. Bargaining History

The following bargaining history is pertinent to this case.

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The parties' 1994-99 collective bargaining agreement had a provision, Section 26,
which dealt
with layoffs. That section had six separate paragraphs. The paragraph pertinent here was
the fourth
paragraph which provided thus:

A person who has bumped into a position in his department shall
be restored to his previous
position if the position is open within one year. After one year, his new position shall
become
permanent.

In 1997, the parties supplemented Section 26 of the aforementioned agreement with a
two-page document entitled "Amendment 1 to Letter of Understanding dated 05/30/97." The
paragraph
pertinent here was the one which stated at the bottom of the first page and continued to the
top of
the second page. It provided thus:

A person who is laid off due to a lack of work in his
occupation, or a person who has bumped
into a position as provided under this Section, shall be restored to their former position if the
position
becomes open within one (1) year. . .

(Emphasis in original)

The next paragraph in that document provided thus:

After one year, the person's new position shall be considered
permanent.

. . .

In April, 1999, the Company laid off 15 employees. That layoff, and the resulting
bumping,
caused considerable disruption in the workplace.

. . .

In the fall of 1999, the parties negotiated a successor collective bargaining agreement.
In
doing so, they modified Section 26 (the layoff provision). The new language modified
paragraphs
2, 3 and 4 of the previous layoff provision. The new language provided thus:

(a) Layoff ­ In the event of a reduction in the
workforce, the person or persons with the
least seniority in the bargaining unit will be placed on layoff. The person or persons, whose
positions
were eliminated by the reduction, will choose, by seniority, from the available positions
vacated by
the people laid off. A person, who has been forced into a position because of a layoff, shall
be
restored to his previous position if open within one (1) year. After one (1) year, his new
position
shall be permanent.

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Employees who are on layoff shall be called back, by seniority,
before new employees, including
summer help, are hire for such work.

Under no circumstances will people from outside the Maintenance
Department be permitted to
bump into Maintenance positions of grade "C" or above.

(b) Realignment ­ In the event
positions are eliminated while the workforce remains the
same, open positions will be posted and eliminated positions notified. Unfilled postings will
be filled
by seniority by those employees affected by the realignment.

A person, who has been forced into a
position by a realignment, shall be restored to his previous
position if open within one (1) year. After one (1) year, his new position shall be considered
permanent.

(c) Re-organization ­ In the
event shift assignments within a job classification are adjusted
without any change in the total number of positions within that job classification, all positions
within
that job classification are to be considered vacant and such positions will be offered by
seniority to
those within that job classification until reorganization is complete.

Sections 26(a) and (b) both specify, in pertinent part, that "a person, who has been
forced into a
position" (either by a layoff or a realignment), "shall be restored to his previous position if
open
within one (1) year." This language, specifically the reference to an "open" "position", was
not new
language. Instead, this language was contained in both the 1994 collective bargaining
agreement and
the document entitled "Amendment 1 to Letter of Understanding dated 5-30-97." Additional
facts
about the 1999 negotiations are set forth in the Discussion section.

In October, 2001, the parties negotiated a successor collective bargaining agreement
to their
1999-2001 agreement. In those negotiations, neither side proposed any changes to Section
26.

C. Weave Department Operations

One of the departments in the plant is the weave department. There are seven
classifications
in that department: weaver, weave department utility operator, mechanic, loom technician,
floor
worker, warper, and draw and reed. The two positions involved in this case are the weaver
and the
weave department utility operator. Prior to June, 2001, there were 26 weavers in the
department,
with about one-third of them on each shift. There were four weave department utility
operators, with
about one on each shift.

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The weaver position is considered one of the top bargaining unit positions. Most
bargaining
unit employees would prefer to be a weaver rather than a weave department utility operator
because
the weaver can earn more money. The weaver is paid on an incentive basis, while the
weave
department utility operator is not.

The basic job of the weaver is to weave. The Company tries to have weavers weave
all the
time. The weave department utility operators also have weaving in their job description, but
it is not
their only job duty. Weave department utility operators perform weaver, warper, and
startup/floorworker duties. Thus, while weave department utility operators weave, they do
not
weave all of the time (the way weavers do). The amount of time that the weave department
utility
operators spend weaving varies from employee to employee and from month to month.
Traditionally,
though, weave department utility operators perform weaving duties about one-third of the
time.
Weaving work has traditionally been assigned to weavers ahead of the weave department
utility
operators.

D. Elimination of Two Weaver Positions

In June, 2001, Company officials decided that there was an overcapacity in the weave
department due to lack of work. They further decided that this overcapacity was not
temporary in
duration. To remedy same, Company officials decided to eliminate two weaver positions.
The two
weavers who had their positions eliminated were LuAnn DeGroot and Rosemary LaCroix.
They
were the least senior weavers. Both employees subsequently received verbal and written
notification
from the Company that their weaver positions were being eliminated. Their written
notification
indicated that this action would occur on or before July 1, 2001. Their written notification
further
recited Sec. 26(b) of the collective bargaining agreement (the realignment provision), and
indicated
that there were two posted positions for which they could apply. This action was officially
implemented on June 18, 2001. On that date, DeGroot and LaCroix moved into different
jobs in the
plant, namely the two posted positions: DeGroot was moved into a general services utility
position
and LaCroix was moved into a winder operator position in the needling department. This
realignment
was not grieved.

DeGroot and LaCroix lost income as a result of being forced out of their weaver
positions.
Both earn about $8.00 an hour less in their current positions than they earned when they
were
weavers.

Since the June, 2001 realignment occurred, neither DeGroot nor LaCroix has
performed any
work as a weaver (either during their regular work hours or when working overtime).
Additionally,
since the realignment occurred, no weaver positions have been posted or filled in the plant.

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This was not the first time that the Company moved DeGroot out of the weave
department
into another department. One time when this happened previously, she was officially moved
into the
needling department. While she was in the needling department, she was sometimes
temporarily
assigned to work in the weave department as a weaver. When that happened, it was because
there
was no work for her to perform in the needling department, whereas there was in the weave
department.

FACTS

In the week ending June 18, 2001, DeGroot kept track of the number of hours that
weave
department utility operators spent weaving on her shift, and she recorded 52 such hours on
her shift.
In her view, the weave department utility operators were improperly performing her
(weaving) job
by doing that much weaving. Thereafter, she talked with Union's chief steward about her
concerns.

The chief steward subsequently talked to the production superintendent about the
amount of
weaving work being done by the weave department utility operators. Union
Exhibit 19 shows that
in the month of June, 2001, the four weave department utility operators spent 240 total hours
weaving.

In July, 2001, the Company laid off a weave department utility operator. This
brought the
number of weave department utility operators down to three.

Union Exhibit 19 shows that after that layoff occurred, the amount of hours that
weave
department utility operators spent weaving dropped. In August, 2001, they spent 204 total
hours
weaving. In September, 2001, they spent 87 total hours weaving. In October, 2001, they
spent 53
total hours weaving.

On October 8, 2001, the Union filed the instant grievance. The grievance alleged
that
weave
department utility operators were weaving at least 50% of the time. Building on that
premise, the
grievance contended that if there was that much weaving work for the weave department
utility
operators to perform, then the Company should bring "back one if not two" of the "weavers
that are
presently on layoff." The reference in the previous sentence to the two weavers "presently
on layoff"
was to DeGroot and LaCroix. This grievance essentially contended that the Company was
using
weave department utility operators as weavers. This grievance was not filed as an individual
grievance by either DeGroot or LaCroix. Instead, it was filed by the Union as a union
grievance.

After the grievance was filed, the weavers and weave department utility operators
began
working overtime. Prior to this, the weavers and weave department utility operators were
not
working overtime. Much of the overtime was worked on Saturdays. In the time

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period between December, 2001 and April, 2002, they worked 15 or 16 of the 20
Saturdays. Twelve
of those Saturdays were mandatory overtime and the other three or four were voluntary
overtime.
Each time overtime was worked on a Saturday, the employees worked six hour shifts, for a
total of
18 hours between all three shifts. Since there were 24 weavers during this time period, with
each one
working six hours of overtime on Saturdays, the 24 weavers collectively worked 144 hours
of
overtime per week. At no time did the Company offer any of this overtime work to DeGroot
or
LaCroix.

POSITIONS OF THE PARTIES

Union

The Union contends that the Company violated the collective bargaining agreement
by
its
actions herein. It elaborates on this contention with the following arguments.

The Union's case is premised on the position that while DeGroot and LaCroix
worked
in non-weaver jobs following the June, 2001 realignment, they were still officially weavers
for one full year.
According to the Union, Sec. 26(b) mandates that result. The Union interprets that provision
to say
that the Company should have treated DeGroot and LaCroix as weavers for one year
following the
realignment for all purposes, including overtime opportunities. That did not happen.
Building on the
premise just noted, the Union argues that the Company violated the collective bargaining
agreement
when it 1) assigned weaving work to weave department utility operators ahead of weavers
DeGroot
and LaCroix; 2) failed to recall DeGroot and LaCroix to open weaver positions in the weave
department; and 3) failed to equitably distribute overtime opportunities in the weave
department to
weavers DeGroot and LaCroix. It makes the following arguments to support these
contentions.

First, the Union responds to the Company's contention that it improperly expanded
the scope
of this grievance at the hearing. It avers it did not. In its view, the grievance which it filed
on
October 8, 2001 consisted of the following three parts: 1) the Company's failure to recall
two
weavers, DeGroot and LaCroix, back into the weave department; 2) the Company's failure to
equitably distribute overtime to DeGroot and LaCroix following the realignment; and 3) the
Company's assignment of work in the weave department to the weave department utility
operators
ahead of weavers DeGroot and LaCroix. It implies that a reading of the grievance makes
this point
self-evident. Building on this notion, the Union notes that at the hearing, it proposed three
separate
issues for determination by the arbitrator. It acknowledges that issues 1 and 2 both reference
overtime. While the arbitrator's decision at the hearing was to not address those two issues
(i.e.
issues 1 and 2), the Union invites the arbitrator to do otherwise. It asserts that the arbitrator
should
address those overtime issues as part of his decision here "for purposes of efficiency, equity
and to
achieve a final decision." In the Union view, those issues (i.e. issues 1 and 2) "are ripe for
decision,
and it is in both parties' interest to fully and completely resolve all issues."

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Second, the Union sees this case, in part, as a past practice case. Consequently, it
makes the
argument traditionally made in such cases, namely that a binding past practice exists which
the
Employer unilaterally changed. According to the Union, the Company's longstanding
custom and
past practice involved here has two parts. The first part is that weavers weave all the time
and weave
department utility operators weave only a portion of the time. The second part is that
weavers have
priority and preference over weave department utility operators in performing weaving work.
As the
Union sees it, this practice is clear and undisputed. Additionally, the Union maintains that
this
practice deals with working conditions, as opposed to a management function. The Union
avers that
the Company unilaterally changed that working condition when it had the weave department
utility
operators perform weaving work ahead of weavers DeGroot and LaCroix between June and
October,
2001, and when it did not give weavers DeGroot and LaCroix preference and priority for
that
weaving work. The Union maintains that this action violated the parties' past practice,
which in turn
violated the collective bargaining agreement. To support that premise, it cites arbitral
authority for
the proposition that when practices are clear, undisputed and detailed, they are enforced by
arbitrators. It asks this arbitrator to do that here.

Third, the Union contends that after DeGroot and LaCroix moved into different jobs
following the June, 2001 realignment, their old weaver positions became "open" within the
meaning
of Sec. 26(b). The Union interprets the word "open" in that section to mean whenever work
becomes
available in the former position. According to the Union, the realigned weaver position
became
"open" in the fall of 2001 when there was no longer a shortage of weaving work. As the
Union sees
it, since the weaving work increased, that should have been sufficient to make at least one of
the
realigned weaver positions "open", and then either DeGroot or LaCroix should have been
recalled
to it.

The Union submits that the meaning just identified should be applied here for several
reasons.
First, the Union relies on the bargaining history for the parties' 1999 collective bargaining
agreement.
According to the Union, when the parties negotiated that agreement, they mutually intended
the word
"open" to mean whenever work was available. It cites the testimony of union negotiators to
support
that proposition. Second, the Union asserts that this is the meaning that has been applied in
the past.
To support that assertion, it notes that DeGroot was, on occasion, temporarily assigned to be
a
weaver in the weave department when she officially worked in another department. Third,
the Union
cites several arbitrators for the proposition that an employee with recall rights has the right to
be
recalled even when there is only temporary work in the position previously held by the
employee.

Next, the Union contends that the Company violated Sec. 11(d) which requires the
Company
to equitably distribute overtime opportunities. According to the Union, the Company failed
to do that
here (i.e. equitably distribute overtime opportunities) because it did not offer DeGroot and
LaCroix
any of the overtime opportunities which were available in the weave department from
December,
2001 to April, 2002.

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Finally, the Union contends that what the Company is attempting to do here is get a
result that
it failed to obtain at the bargaining table. It asks the arbitrator to not allow that to happen.

The Union therefore asks that the grievance be sustained. In order to remedy the
Company's
contractual violation, the Union asks for the following economic damages for DeGroot and
LaCroix.
First, the Company should be required to provide them the same opportunities to work
overtime as
the employees still working in the department. Second, DeGroot and LaCroix should be
compensated for the overtime opportunities between June, 2001 and June, 2002 which they
missed.
Third, DeGroot and/or LaCroix should be transferred back into their old weaver position(s)
and be
compensated for lost wages from June, 2001 to the date that they are reinstated as weaver(s).
In
addition, the Union asks the arbitrator to prohibit the Company from making unilateral
changes to
established working conditions and past practices.

Company

The Company contends its actions herein did not violate the collective bargaining
agreement.
It elaborates on this contention with the following arguments.

The Company initially addresses the issues which it believes are properly before the
arbitrator
for resolution. In its view, its wording of the issue accurately reflects the issue which is
properly
before the arbitrator for resolution. To support that premise, it notes that the instant
grievance
alleged that as of the week of October 8, 2001, the weave department utility operators were
spending
50% of their time weaving; building on that premise, the Union asserted that if they were
spending
that much time weaving, then the Company should return one or both of the realigned
weavers to the
weave department to do that work. The Company submits that when the grievance was
processed
through the grievance procedure, that is how the issue was framed by the Union. The
Company
argues that at the hearing though, the Union improperly expanded the grievance to three
other areas.

The first new area involved overtime work in the weaving department. According to
the
Company, overtime work in the weaving department was never raised as an issue in the
processing
of the instant grievance prior to arbitration, nor was it (i.e. overtime work) ever discussed by
the
parties as part of the grievance process. The Company asserts that the first time the Union
raised
an overtime work issue, in the context of this case, was on the first day of the arbitration
hearing.
The Company maintains that was inappropriate, and that the arbitrator was correct to
disallow the
overtime issue to be decided as part of this case. To support this notion, the Company notes
that
arbitrators routinely thwart efforts to expand arbitration issues beyond those addressed in the
earlier
steps of the grievance procedure.

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The Company asserts that the Union's efforts to improperly expand the scope of this
grievance were not limited to just its efforts to include the overtime issue. As the Company
sees it,
the Union also attempted to transform the grievance from objecting to the Company's failure
in not
". . .bringing back 1 if not 2 weavers that are presently on lay off", to an assertion that the
realigned
personnel actually remained weavers after the realignment and should have been and should
be
entitled to perform all weaving work performed by weave department utility operators. The
Company avers that just as it was improper for the Union to bring up a new issue regarding
overtime,
it was also improper and inappropriate for the Union to make this new allegation regarding
the status
of realigned weavers for the first time at the arbitration hearing.

Third, the Company argues that during the course of the hearing, the Union
improperly
attempted to incorporate individual grievances of DeGroot and LaCroix into the instant Union
grievance. To support this notion, it notes that during the arbitration proceedings, the Union
solicited
testimony from LaCroix and DeGroot as to how the instant Union grievance incorporates
their
individual grievances, as well as personal monetary remedies to which they believe they are
entitled.
The Company avers that if either employee had wanted, they could have filed an individual
grievance.
However, they did not. In the Company's view, whether it was their choice not to file an
individual
grievance or on advice of the Union is irrelevant. The Company submits that their individual
claims
are not properly before the arbitrator for disposition, and therefore any remedy which the
arbitrator
may order should not include individual relief. The Company therefore asks the arbitrator to
limit his
decision to the issue it identified, and not to address and/or decide all the issues which the
Union asks
the arbitrator to decide.

Next, building on the notion just identified, the Company avers that the arbitrator
need not
consider much of the record evidence in this case because it is not relevant to the issue which
is
before him. In the Company's view, substantially all of LaCroix's and DeGroot's testimony
has no
relevance to this issue. The Company contends that the same point applies to the record
evidence
concerning overtime work, and comparisons between work performed at the time of the
June, 2001
realignment and work performed sometime between January and April, 2002. According to
the
Company, all that evidence involves matters outside the scope of the arbitrator's ruling. The
Company therefore maintains that what has transpired since November, 2001 is not relevant
to
disposition of this grievance.

Having expressed the views just noted about the issues and evidence which the
arbitrator
should address, the Company next offers the following summary of this case. The Company
sees this
case as being an effort by the Union to infringe on its management right to control staffing.
It asks
the arbitrator to not infringe on that right. Additionally, it emphasizes that this is not a case
of
removing work from the bargaining unit; all of the work at issue has been and continues to
be
performed by bargaining unit personnel (specifically, the 24 persons

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in the position of weaver and three persons in the position of weave department utility
operator). It
elaborates as follows.

First, the Company responds to the Union's contention that LaCroix and DeGroot
were still
weavers when the grievance was filed. The Company's position is that the Union's
proposition that
the two realigned weavers remained weavers for the year period following realignment for all
purposes, including overtime opportunities, is without merit. As the Company sees it, it is
clear from
the first phrase in Section 26(b) that realignment occurs only when a position is eliminated.
The
Company cites a dictionary definition of "eliminate" for the proposition that it means to get
rid of,
remove or eradicate. The Company asks rhetorically if one's job no longer exists, how can
one
continue to hold that job? The Company answers that rhetorical question by saying they
cannot.
Additionally, the Company submits that the Union presented no evidence that the Company
has ever
recognized any person as having continued to hold a particular job after that job has been
eliminated.

Next, the Company avers that Section 26(b) does not have the meaning given it by
the
Union.
The Company first contends that if it did, the Union's interpretation would limit
management's right
to determine staffing. The Company submits that if that was the parties' intent (i.e. that they
intended
to compromise the Company's management right to determine staffing), it would, at a
minimum, have
been aware of same, and it was not. Second, the Company argues that the Union's
suggestion that
Section 26(b), particularly due to the phrase "open position", creates some obligation on the
part of
management to restaff positions which were realigned when certain conditions exist, such as
increase
of work or retirement of personnel, defies logic. According to the Company, it defies logic
because
the labor agreement does not establish any parameters as to what conditions must exist which
would
require restaffing. The Company asserts that it is impossible to believe that the parties
would have
negotiated such a serious limitation to management rights in such an open-ended manner,
without any
implementing language whatsoever. Third, the Company maintains that the lack of
parameters to the
Union's proposed interpretation of "open position" is evident by its own inability to articulate
when
a position becomes "open". Given the foregoing, the Company asserts that the more logical
explanation is what it offered at the hearing: namely, that an open position is a position
which the
Company has decided to create or fill. Applying that definition of the word "open" to the
instant
facts, the Company avers that there have been no open weaver positions since the June, 2001
realignment, and there certainly was no "open" position at the time of the grievance.

To support the contention just noted that there was no "open" position at the time of
the
grievance, the Company cites the following statistics. It notes that while the grievance
alleged that
the weave department utility operators were weaving 50% of the time, the Company
maintains they
were actually weaving less than 25% of the time. According to the Company, weave
department
utility operators spent an average of 26% of their time in September, 2001

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weaving and 16% in October, 2001. The Company maintains that assuming a 170
hour work-month,
such is not full-time for even one person.

Finally, the Company believes that the Union's position in this case is not supported
by past
practice either. In the Company's view, there is no evidence as to past practice in the
application of
Section 26(b) or any of the terms or phrases used in that section which might limit the
Company's
actions related to this grievance. It elaborates on this contention as follows. First, it notes
that since
the Union is only arguing that weaving duties done by weave department utility operators
were not
properly reassigned to LaCroix or DeGroot, its argument that past practice dictates that
weavers get
weaving work before weave department utility operators is without merit simply on the basis
that
LaCroix and DeGroot were not weavers at the time in question. Second, the Company
asserts that
the Union's argument regarding past practice also fails on more fundamental levels. It
asserts that
factually, it is impossible to establish with any precision what the relationship has been
between
weaving work assigned to weavers and that assigned to weave department utility operators.
To
support that premise, it submits that a review of weaving hours worked by weavers and
weave
department utility operators just for the short time between October, 2000 and June, 2001
reveals
that the number of weaving hours has varied greatly in each job. For example, in some
months,
weave department utility operators spent half of their time weaving, while in other months,
weave
department utility operators spent just a third of their time weaving. According to the
Company, this
is hardly an indicator of any clear past practice. Third, the Company calls attention to the
fact that
both weave department utility operators and weavers have weaving work in their job
description, and
that both have performed weaving work on a greater or lesser basis through the years. The
Company
asserts that as long as employees are paid in accordance with the terms of the labor
agreement, it is
free to assign weaving duties to whomever it wishes ­ either weave department utility
operators or
weavers ­ regardless of what it has done in the past.

Given the foregoing, the Company believes it did not violate the collective bargaining
agreement by its actions herein. It therefore asks that the grievance be denied.

DISCUSSION

A. Structure of this Discussion

I begin with a description of how this discussion is structured. Attention will be
focused first
on the scope of this decision. Next, the focus turns to the contract language cited by the
parties.
After that contract language has been reviewed, attention will be given to certain evidence
external
to the agreement. The evidence I am referring to involves the parties' bargaining history and
an
alleged past practice.

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B. Scope of this Decision

At the start of the hearing, the Union presented three issues to be decided:

Issue No. 1: Can the Company require or
allow overtime hours for employees in a department
when the department had positions eliminated within the last year and employees have recall
rights
based on realignment pursuant to Section 26B of the Agreement?

Issue No. 2: Is the
Company required to provide employees in a different position based on a
realignment as defined in Section 26B the Agreement an opportunity to work overtime when
offered
in the employee's former position?

Issue No. 3: If the
Company eliminates two weaving positions pursuant to 26B of the
Agreement, can the Company have employees in a different position perform the job duties
and job
responsibilities of the two weave positions that were eliminated?

Issues 1 and 2 above deal with overtime work. The Company
objected to them as being beyond the
scope of the original grievance and beyond what the parties addressed in the grievance
procedure.
I agreed with the Company on this point and ruled that the scope of the hearing was to be
limited to
Issue 3 above because that was the subject matter which was referenced in the October, 2001
grievance. In accordance with that ruling, I will not answer Issues 1 and 2 as worded above.
However, this decision is not silent on the matter of overtime. In drafting the decision, I
found it
necessary to discuss same because it was subsumed into the Union's argument that DeGroot
and
LaCroix kept their weaver classification for all purposes, including overtime opportunities,
for one
year following the June, 2001 realignment. Consequently, I have addressed overtime to the
extent
I felt it was necessary. Another contention which I find subsumed into the Union's argument
is that
DeGroot and LaCroix remained weavers for one year following the June, 2001 realignment.
That
contention is addressed and decided herein. Finally, with regard to Issue 3 above, while the
Union's
wording of that issue is similar in meaning to the Company's, I adopted the Company's
wording of
that issue rather than the Union's. The reason I did so was because the Company's wording
of the
issue includes the standard question asking whether the Company violated the collective
bargaining
agreement, while the Union's wording of the issue did not. A final comment is in order
about the
word "layoff" which is used in that issue. While the word "layoff" is used in the phrase
"two weavers
were on layoff", it is noted that the two employees were not laid off in the traditional sense.
By that,
I mean that they did not have their employment totally temporarily severed by their "layoff".
Instead,
following the June, 2001 realignment, they moved into different jobs elsewhere in the plant.
Thus,
in this case, the word "layoff" refers to the fact that two employees were moved from
weaver jobs
to different jobs.

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Having so found, the basic question to be answered is whether the Company violated
the
collective bargaining agreement by its action herein. The Union contends that it did while
the
Company disputes that contention. I answer that question in the negative, meaning that the
Company
did not violate the collective bargaining agreement by its actions herein. My rationale
follows.

C. The Contract Language

The first contract provision relied on by the Company is the Management Rights
clause which
is found in Article 2. In that clause, the Company retains those rights which are not
bargained away
or limited by the collective bargaining agreement. The first sentence of that clause says that
"the
management of the plant and the direction of the working force. . . shall be vested
exclusively in the
Company as functions of management." Among the functions which management
specifically retains
are the right to "transfer from one job to another", and the right "to assign individual jobs in
each
department." This language can certainly be read to give management the operational right
to
determine staffing levels and to assign work to employees and job classifications.

The next question, contractually speaking, is whether any restriction or limitation is
imposed
on management's right to determine staffing levels and assign work. There is not. Some
collective
bargaining agreements do that via contract provisions that specify which job classification
performs
which work, how many employees will be assigned in various job classifications, and how
many
employees in those job classifications will work on each shift. A review of this collective
bargaining
agreement indicates that it contains no such language. Specifically, there is no contract
provision
herein which specifies which job classification performs weaving work, how many weavers
or weave
department utility operators the Company will employ, how many weavers or weave
department
utility operators will work on each shift, or how much weaving work can be done by the
workers in
those classifications. Given that contractual silence, the management rights clause controls,
and gives
management the right to make those decisions. Under this contract then, management can
assign
weaving work as it sees fit.

The Union essentially ignores the management right just referenced, and relies
instead
on two
contract provisions which have yet to be reviewed. Those contract provisions will be
addressed next.

One contract provision which the Union relies on is Sec. 11(d). That provision
provides in
pertinent part that the Company will "equitably distribute overtime opportunities within each
job
classification in each department. . ." The Union contends that the Company violated that
provision
when it did not offer DeGroot or LaCroix the opportunity to work any of the overtime which
was
available to the weavers. This contention is obviously based on the

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premise that DeGroot and LaCroix were still weavers when the overtime work was
available.
Building on that premise, the Union avers that, as weavers, they were entitled to their
equitable share
of the available overtime. It suffices to say here that I do not accept that premise. The
rationale for
this finding will be elaborated on in the discussion concerning Sec. 26(b). That
discussion comes
next.

Another contract provision which the Union relies on (to support its position) is
Sec. 26(b).
In its view, that provision requires the Company to treat DeGroot and LaCroix as weavers
for one
year following the June, 2001 realignment for all purposes, including overtime opportunities.
The
Company disputes that interpretation. Given that disagreement, I have to decide how Sec.
26(b) will
be interpreted.

I begin my analysis of Sec. 26(b) with the following overview of same. Since that
subsection
is entitled "Realignment", the logical starting point for purposes of discussion is to ask
rhetorically
what is a realignment? The answer is found in the phrase which immediately follows the
word
"realignment" in the title, namely the phrase which begins: "In the event positions are
eliminated while
the workforce remains the same. . ." Reading this phrase together with the word
"realignment" which
precedes it, this section establishes that a "realignment" occurs when "positions are
eliminated while
the workforce remains the same." A review of this section indicates that it does not limit
realignments to situations in which there is a reduction in the amount of work performed in
the
Company. Additionally, this section does not spell out when the Company can implement a
realignment. Instead, it gives the Company the right to realign the workforce if it chooses to
do so,
and creates a mechanism for doing it. That being said, the entire section is predicated on a
certain
precondition occurring. The precondition is that a position is eliminated by the Company. If
that
precondition occurs (i.e. that a position is eliminated), then the second paragraph specifies
what
happens next: the affected employee moves into a different position. However, if that
precondition
does not occur (i.e. if a position is not eliminated), then Sec. 26(b) does not apply. The
second
paragraph of Sec. 26(b) then goes on to specify that if a certain act which will be identified
and
discussed later occurs, the employee "shall be restored to his previous position." I interpret
this to
mean that the employee who is realigned from one position to another has recall rights to
their
previous position if a certain situation arises. The certain situation just referenced is this: if
the
realigned position becomes "open within one (1) year." If that occurs, and the realigned
position
becomes "open" at any point within one calendar year from the date of the realignment, then
the
employee who was realigned "shall", in the words of the second paragraph, "be restored to
his
previous position." What this means is that the realigned employee does not have to go
through the
posting process again to get the "open" position. Instead, they simply move into it. A final
comment
is in order. The recall rights just referenced apply only if the realigned position officially
becomes
"open". That formality has to occur. If it does not, meaning that the realigned position does
not
officially become "open", then the employee has no recall rights to it (i.e. their old realigned
position).

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Having given that overview of Sec. 26(b), it will now be applied to the record facts.
I begin
my analysis with what I consider the easy part. As has already been noted, that section is
predicated
on a certain precondition occurring, namely a position being eliminated. A common
dictionary
definition of eliminate is to get rid of or remove. That is exactly what happened to the
weaver jobs
DeGroot and LaCroix held on June 18, 2001. Their weaver positions were, in fact,
eliminated. On
that date, the Company went from having 26 weavers down to 24. DeGroot and LaCroix
then
moved into different jobs elsewhere in the plant because their weaver jobs no longer existed.

The next part of my analysis addresses the crux of this dispute, and quite frankly, the
hard
part. The Union avers that after DeGroot and LaCroix moved to different jobs following the
June,
2001 realignment, they kept their weaver classification for all purposes, including overtime
opportunities, for one calendar year. Thus, in the Union's view, they were still officially
weavers
during that one year period even though they were then working in non-weaver jobs. While
my initial
reaction is to say that DeGroot and LaCroix were not weavers following the realignment
because they
worked in other non-weaver jobs, the Union's proposed interpretation cannot be so easily
dismissed.
The reason is this: two parts of Sec. 26(b) can plausibly be read to support that
interpretation. The
following shows this. First, as was noted in the overview of Sec. 26(b), the second
paragraph of that
section does say that the employee who is realigned has recall rights to their realigned
position if it
becomes "open" within one calendar year. While the question of whether the realigned
position
became "open" will be addressed later in this discussion, it is sufficient to say here that the
Union
believes that it did, in fact, become "open". If that was the case, then one or both of the
realigned
employees should have been restored to a weaver position. Second, the last sentence of the
second
paragraph of Sec. 26(b) says that "after one (1) year, this new position shall be considered
permanent." While this language does say that the employee's new position becomes their
permanent
position after one year, it does not say what happens in the interim (i.e. before the one-year
period
ends). The Union infers from this sentence that the realigned employee keeps their old
classification
for all purposes, including overtime opportunities, for one calendar year. Both of these
points are
subsumed into the discussion which follows.

The focus now turns to the Union's contention that after DeGroot and LaCroix
moved
into
different jobs following the June, 2001 realignment, their old weaver positions became
"open", at
which point the Company should have placed them back into them (i.e. their old weaver
positions).
Knowing that its case is built on the premise that the two realigned employees were still
weavers, the
Union proposes a definition of the word "open" that is, to say the least, expansive. The
Union
interprets the word "open" to mean anytime when work is available in the former position,
and it asks
me to so find. I conclude that expansive meaning of the word "open" lacks a contractual
basis, and
therefore will not be applied herein. Here's why. When the parties drafted Sec. 26(b), they
did not
define the word "open", or say who gets to determine when a position is "open". Given that
contractual silence, the threshold

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question is who gets to make that call. Rhetorically speaking, is it the Union, the
affected employees,
or the Company that makes that call? It is a well-accepted arbitral principle that the
Company gets
to make that call; it decides if a vacancy exists. It is also a well-accepted arbitral principle
that a
vacancy is an open position which the Company decides to fill. If the Company decides to
fill the
open position, it posts the vacancy. If the Company decides to not refill a position which
was
formerly filled, then it does not post it. In this case, there was no posting for a weaver
position
following the June, 2001 realignment. Since there was not, officially there was no "open"
weaver
position. That was the Company's call to make.

A big part of the Union's case was trying to show that there is no longer a shortage
of
weaving work. The Union avers that following the June, 2001 realignment, the amount of
weaving
work increased. Building on that premise, the Union alleges that this increase in the amount
of
weaving work should have been sufficient to make at least one of the realigned weaver
positions
"open", and then either DeGroot or LaCroix should have been recalled to it. For the
purpose of
discussion, it is assumed that following the June, 2001 realignment, the weaving work
increased.
However, even if that happened, it is of no contractual significance. The reason is this: it
has
previously been noted that management retains, via the Management Rights clause, those
rights which
are not bargained away or limited by the collective bargaining agreement. In this case, there
is
nothing in Sec. 26(b), or elsewhere in the contract for that matter, that either explicitly or
implicitly
requires the Company to refill or restaff positions or levels of positions when there is an
increase in
work. An obligation like that to refill or restaff positions when there is an increase in work
requires
affirmative language in the contract because it is a limitation on an important management
right.
There is no such language in this contract. That being so, management has no obligation
here to refill
or restaff positions when there is an increase in work. Consequently, even if there was
enough
weaving work in this instance to permit the Company to temporarily place a person who had
been
realigned from a weaver position back into a weaver position within one year of the
realignment, the
Company was not required to do so.

As a practical matter, the decision just reached disposes of two other contentions
raised by
the Union. First, it disposes of the Union's argument that the Company did not equitably
distribute
weave department overtime to DeGroot and LaCroix. As was noted earlier in this
discussion, Sec.
11(d) requires the Company to equitably distribute overtime to the workers in the affected
classifications. Insofar as the record shows, the Company did that here. While the
Company did not
offer DeGroot and LaCroix any of that overtime, it did not have to do so. In fact, if it had
done so
and cut them in on the overtime when they were no longer working in the weave department,
the
other weavers would have probably cried foul. Since neither realigned weaver position was
ever
determined by the Company to be "open", neither DeGroot nor LaCroix was contractually
entitled
to work any of the overtime work which arose in the weave department following the June,
2001
realignment. At that point, they were no longer weavers, so they were not entitled to work
any
weaver overtime. Second, the decision reached

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above also disposes of the Union's argument that any time there is any weaving work
which could
not be performed during normal work time by the other weavers, no matter how small, such
weaving
work should have been temporarily assigned to DeGroot and LaCroix. Once again,
following the
June, 2001 realignment, DeGroot and LaCroix were no longer weavers. Hence, they were
not
entitled to perform weaving work. While DeGroot had previously been temporarily assigned
to work
in the weave department as a weaver while officially assigned to another department, that
particular
work assignment did not obligate the Company to do so here. Once again, under this
contract,
management has the right to make temporary work assignments as it sees fit. It can assign
weaving
work to whomever it wants.

D. Bargaining History

I further find that the parties' bargaining history supports the interpretation of
Sec. 26(b)
noted above. Bargaining history is a form of evidence arbitrators commonly use to help
them
interpret contract language and ascertain the parties' intent regarding same.

While the witnesses certainly did not agree about all of the bargaining history
concerning Sec.
26(b), there was general agreement on the underlying reason that Sec. 26(b) came to
be part of the
contract. It was this: the parties recognized that when an employee lost their job due to a
realignment, the Company lost an employee that was fully trained and experienced in that
job. If the
Company subsequently decided to refill that job, the employee who formerly held that job
could
certainly bid for it pursuant to the posting procedure, but might not get it due to their lack of
seniority. In order to avoid this scenario (i.e. the realigned employee bidding for the job but
not
getting it because of their lack of seniority), and to take advantage of the employee's training
and
experience in that job, the parties agreed to language which, as already noted, says that if the
realigned position subsequently becomes "open" within one year, then the employee who was
forced
out of the position by the realignment would be "restored" to their previous position.

When the parties drafted Sec. 26(b), they obviously drafted some new contract
language.
However, the part of the language pertinent here (namely, the word "open"), was not new.
That
word was contained in Sec. 26 of the parties' 1994 collective bargaining agreement. It was
also
contained in the document entitled "Amendment 1 to Letter of Understanding dated
05/30/97." Since
the word "open" was contained in both those documents, it is logical to assume that it had
the same
meaning there as it does here. In other words, its meaning continued unchanged. As for its
meaning,
the parties' bargaining history for those documents (i.e. the 1994 collective bargaining
agreement and
the 1997 letter of understanding) does not show that the parties discussed, much less agreed
on, a
particular meaning for the word "open". That does not matter though. The reason is this:
since the
word "open" is not defined in the contract, the Company gets to decide whether and when a
position
is open. Said another way, the Company decides if a vacancy exists and when it is

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filled. This is not atypical in labor relations; it is the norm. Additionally, there is no
evidence in the
record that the Company ever recognized any employee as continuing to hold a particular job
after
that job was eliminated.

According to the Union, when the parties negotiated the 1999 collective bargaining
agreement, they intended the word "open" to mean whenever work was available. I
conclude that
even if that was the Union's intent, and that it was the way the Union wanted the word
"open" to be
defined, that does not make it the meaning which will be applied here. Here's why. When
arbitrators
use bargaining history to help them ascertain the parties' intent, what they rely on is a
manifested
intent (i.e. what the parties directly communicate to each other about their understandings of
a
proposal); not undisclosed intent. In this case, it is not clear that the Union's proposed
definition of
"open" (i.e. meaning whenever work was available), was told to the Company's negotiators.
That
being so, Company negotiators did not agree to that particular meaning for the word "open".
It can
therefore be said with absolute certainty that when Sec. 26(b) was agreed on, the parties did
not
mutually contemplate that the word "open" in that provision meant whenever work was
available.
Given the foregoing, I find that the bargaining history does not show that the parties
mutually
adopted a meaning for the term "open" that meant whenever work was available.

E. Past Practice

Finally, the focus turns to the Union's past practice argument. As the Union sees it,
the
Company has a past practice of assigning weaving duties to weavers before assigning such
work to
weave department utility operators. Building on that premise, the Union argues that the
Company
failed to follow that practice when it allowed weave department utility operators to weave
after two
weaver positions were eliminated in the June, 2001 realignment. It asks the arbitrator to find
that
practice binding and enforce it.

Before addressing the threshold question of whether there is or is not an applicable
past
practice, it is noted at the outset that past practice is primarily used or applied in the
following
circumstances: (1) to clarify ambiguous language in the parties' agreement; (2) to implement
general
contract language; (3) to modify or amend apparently ambiguous language in the agreement;
or (4)
to establish an enforceable condition of employment where the contract is silent on the
matter. What
is unique about the fourth category just noted is that it does not involve contract language
perse,
while the other three categories do. In this contract, there is no language which deals with
weaving
work in general, or even more specifically, which limits how much weaving work the weave
department utility operators can do. That being so, circumstances (1), (2) and (3) above are
inapplicable here. This is because there is no contract provision that the alleged "practice" is
suggested as clarifying (#1), implementing (#2), or modifying (#3). Consequently, this is a
category
(4) case since the Union seeks to have the alleged "practice" concerning who does weaving
work
supplement the contract so as to be

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binding on the parties and become an enforceable condition of employment. In
situations such as this
where a party wishes to clothe a course of conduct with contractual status, that practice must
reflect
as many elements of the contract as possible. Simply put, the practice must be the
understood and
accepted way of doing things over an extended period of time. Additionally, it must be
understood
by the parties that there is an obligation to continue doing things this way in the future.

In this case, there is no dispute that the weavers have traditionally done weaving
work
ahead
of the weave department utility operators. There is a simple reason for this: the primary job
of
weavers is to weave, while weaving is not the primary job of the weave department utility
operators;
they do other work as well.

That being said, the question in this case is whether the fact just noted (namely, that
weavers
have historically done weaving work ahead of the weave department utility operators) is
sufficient
to establish a binding past practice which is entitled to contractual enforcement. I find it is
not. The
Union's underlying theory that this is a past practice case overlooks the fact that not every
pattern
of conduct amounts to a binding past practice, particularly when the pattern of conduct arises
from
the exercise of a management right. That is precisely the case here. What happened
previously
concerning the assignment of weaving work was not the result of bargaining with the Union,
but
rather was the Company's unilateral act. The Company had previously decided that weavers
do
weaving work ahead of the weave department utility operators. That was their right. The
Company
had the right to make that decision because it reserved to itself, via the Management Rights
clause,
the right to manage and control the assignment of work. As previously noted, there is
nothing in this
contract that specifies which classification does what work. Some contracts do, but this
contract
does not. More to the point, this contract does not limit how much weaving work the weave
department utility operators can perform. Additionally, this contract does not say that
management
has to assign weaving work to weavers ahead of weave department utility operators. This
means that
previous decisions concerning who does weaving work were the product of management
prerogatives. Said another way, they arose from the exercise of a management right.

Since all previous instances of weavers doing weaving work ahead of weave
department utility
operators resulted from the Company exercising its management right to assign work, the
Union had
the burden of showing that the Company knowingly waived its management right to assign
weaving
work and agreed to assign weaving work in the future exactly as it had done in the past. It
did not
do so. Therefore, the Company has not waived its management right to assign weaving
work as it
sees fit.

The Union attempts to dodge the bullet just referenced (namely, management's right
to assign
weaving work as it sees fit) by characterizing the "practice" here as involving a working
condition.
That contention is unpersuasive.

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Aside from the points just made, there is yet another problem with the Union's past
practice
argument. It is this: the Union's past practice argument is built, of course, on two premises.
The first
premise is that the Company changed the existing "practice" of assigning weaving work to
weavers
ahead of weave department utility operators when it failed, in this instance, to assign
weaving work
to weavers ahead of weave department utility operators. The second premise is that DeGroot
and
LaCroix were still weavers following the June, 2001 realignment and the elimination of their
weaver
positions. Even if I accepted the first premise (i.e. that the Company changed the "practice"
of
assigning weaving work to weavers ahead of weave department utility operators), I do not
accept the
second. I have previously found that notwithstanding the Union's contention to the contrary,
DeGroot and LaCroix were not weavers following the June, 2001 realignment because the
Company
never subsequently determined that their former positions were "open". That finding is fatal
to the
Union's past practice argument.

F. Summary

In sum then, it is held that the work assignments involved
herein pass contractual muster.
Hence, no contract violation has been found.

Any matter which has not been addressed in this decision has been deemed to lack
sufficient
merit to warrant individual attention.

In light of the above, it is my

AWARD

That Voith Fabrics did not violate the collective bargaining agreement on or about
October
8, 2001 by assigning weaving duties to weave department utility operators while two weavers
were
on layoff pursuant to a realignment. Therefore, the grievance is denied.